AUTHOR – NADIYA PATEL | COLLEGE NAME – THAKUR RAMNARAYAN COLLEGE OF LAW
Is there any witness Protection Law in India? What is the witness protection scheme in India? Can witnesses refuse to testify? who gets put in witness protection? How many numbers of people died under witnesses Protection?
Witnesses are regarded as one of the most absolutely necessary elements in the criminal justice system. It is because of them that the trial finds some substance so as to arrive at the fair conclusion. The inputs provided by the witness may have a direct bearing on the conviction of an accused. It is desired that such witness be protected from the wrath of extraneous factors that have the ability to change his stance over a particular case. Extraneous factors in the form of corruption form a majority which results in turning off the witness hostile.
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The most indispensable element in the criminal justice system is WITNESSES. A fair conclusion of a trial is possible because of witnesses only. We have seen many times in the films and on other entertainment sources where witness been killed by the accused or witness became hostile. It is very important to protect witnesses and the rights of witnesses. Corruption, threat, blackmailing, these are some of the factors which can violate the rights of the witness which can result in injustice. Some strong and lawful actions with respect to witness is an important need of the judicial system nowadays.
According to the black’s law dictionary person who sees documents signed or a person called to court to testify and provides evidence is a witness. Examination of the witnesses comes under section 135 of the Indian Evidence Act.
Section 311 of the Code of Criminal Procedure empowers the court to summon a material witness. Order XVIII of rule 4 to 16 of the Code of Civil Procedure enumerated examination of witnesses. Section 137 of the Indian Evidence Act classified the examination of witnesses into three types. In the case of Ms. Neelam Katara v. Union of India, the Delhi High Court defined, “witness means a person whose statement has been recorded by the investigating officer under 161 of the C.R.P.C pertaining to a crime punishable with death or life imprisoned“.
Jeremy Bentham defines witnesses are the eyes and ears of justice. Witness requires special treatment in any case of jurisdiction. In-state of Gujarat v. Anirudh Singh, Hon’ble Supreme Court of India held that “it is the salutary duty of every individual witness who has knowledge of the commission of the crime to assist the state in giving the evidence”.
PRESENT SCENARIO OF WITNESSES IN INDIA
In the Indian legal system, the condition of witnesses is highly pathetic. Witnesses face pressure wrath and a threat to his life and because of this, they end up turning hostile. The Witnesses neither have any legal remedy nor do they get suitably treated. Witness in India is being taken completed granted. Turning hostile of witnesses is a grave worry for the judiciary in India.
In Zahira Habibullah Shaikh v. the State of Gujrat, the supreme court reiterated that legislative measures to emphasize prohibition against tampering with witnesses, victims, or informants, have become the imminent and inevitable need of the day.
WITNESS PROTECTION SCHEME 2018
At present, there is no law or scheme at the national level for the protection of witnesses. The Hon’ble supreme court has approved that India’s first witness protection scheme drafted by the Union government. In the case of Mahendra Chawala & Ors. V. Union of India & Ors., the Apex court approved the witness protection scheme, 2018 and has asked the center, state, and union territories to enforce it in the letter and spirit.
THE AIMS AND OBJECTIVE OF THE WITNESS PROTECTION SCHEME 2018
The aim and objective of the scheme, are to ensure that the investigation, prosecution, and trial of the criminal offenses is not prejudiced because the witnesses are intimidated, to give the evidence without the protection from the violent or criminal recrimination.
It plans to advance law requirements by encouraging the assurance of people who indulge directly or indirectly in giving help to the criminal law enforcement agencies and generally the administration of the Justice. The Scheme categorizes the witnesses into three classes depending on the degree of peril to them and the sets down point by point method for the security of the individual classifications. The program distinguishes the three categories of witnesses as per threat perception
Category A: Cases where threat extends to the life of witness or family members during the investigation, trial, or even thereafter.
Category B: Cases where the threat extends to safety, reputation, or property of the witness or family members during the investigation or trial.
Category C: Cases where the threat is moderate and extends to harassment or intimidation of a witness or his family members, reputation, or property during the investigation, the trial, or thereafter.
The State Witness Protection Fund has been proposed under this scheme. The wellsprings of State Witness Protection Fund are :
The budgetary assignment made in the Annual Budget by the State Government; Receipt of measure of fines forced (under the Section 357 of the CrPC) requested to be kept by courts/councils in the Witness Protection Funds;
The Donation/Commitments from The International/National/Philanthropic Charitable Institutions/Organisations and people allowed by The Central/State Governments and The Funds contributed under Corporate Social Responsibility.
RIGHTS OF THE WITNESS
Witnesses are extremely important to the court. There need to be a certain sense of safety that needs to be given by the state to the witnesses who come forward to testify and it is the responsibility of the State to impart adequate protection to witness. Various Law Commission Reports and the Witness Protection Scheme had identified certain rights that every witness possess :
Right to secure waiting place while at the Court proceedings.
Right to information of the status of the investigation and prosecution of the proceeding
Right to be treated with the compassion and dignity and respecting privacy.
Right to protection from harm and intimidation.
Right to give evidence without revealing identity.
Right to a stay at a safe place and transportation.
It shall be mandatory for the Investigating Officer and Court to inform each and every witness about the existence of the “Witness Protection Scheme”.
TYPES OF PROTECTION MEASURE
The Measures include providing a police escort to the witness up to the courtroom. In more complex cases mostly in criminal cases taking extraordinary measures such as offering temporary residence in a safe house, Police security, giving a new identity, Providing a conveyance in government vehicles to and from the court on the date of hearing, and also measures such as close protection, regular patrolling around the witness’s house.
LESSONS TO LEARN FROM FOREIGN JURISDICTIONS WITH RESPECT TO WITNESS PROTECTION
When it comes to the implementation and formation of an effective witness protection scheme, India has a lot to learn from the other nations of the world. To maintain the anonymity of the witness, the Australian witness protection act focuses extensively on the protection of the identity of the witness by changing their registered birth dates, etc. intimidation of a witness is an offense punishable under the law in the United Kingdom.
In the United Kingdom, numerous provisions of law exist in the sense that the witness is screened in a manner that only judges or jury can see him. A comprehensive witness security program called WITSEC is there in the United States. Convictions in the United States has gone up to 89 percent since the inception of WITSEC in 1970.
MAJOR CHALLENGES WITH WITNESS PROTECTION LAW IN INDIAIN INDIA
In all manner, India is always very good at making new schemes and come up with good ideas but always lack an implementation program. In India, there is the only policeman for every 720 people. As India is a hugely populated country, this is not at all sufficient to handle the situation. Whereas, in the ln United States, there is one police man for every 400 people. Also, there is a lot of difference between the population of the United States and India.
So, obviously, there will be a huge difference in the case of implement various schemes and ideas between both the two countries. The statistics make it difficult to implement the schemes related to protection and investigation.
If we want proper administration of criminal justice in society, then society should be developed with the establishment of peace and security in society. it is high time that the government of India has come up with either a witness protection legislation or a comprehensive scheme. As to fill this void, that exists in the sphere of witness protection in India towards these ends. The protection schemes of the other nations of the globe like Australia, the United Kingdom, and the United States are really very effective and proved excellent results in the protection of witnesses and their rights and for reducing the offenses to do so.
Even India can have these laws and schemes to be implemented. The right to speedy trial must also be ensured. There is a significant role of witness in the criminal trials of India. Respect and dignity have been lost in the process of trials in the current scenario. Bring justice in the true sense, the Indian legal system needs to reinstate that respect and dignity to the witnesses. Extremism, terrorism, and organized crimes have grown and are becoming stronger and diverse in recent years.
It is essential that witnesses have trust in criminal justice system programs and laws for witness protection are just need of great importance. Witnesses need to have come forward to assist law enforcement. They should have a guarantee that they will get protection if they speak the truth in front of the court as a witness.
ILR (2003) II Del 377.
(1997)6 SCC 514.
Zahira Habibullah Sheikh v. State of Gujarat, 2004 (4) SCC 158.